prison to a mental health institution involves more than a simple administrative decision. U.S. ex rel Schuster v. Herald, 410 F.2d 1071 (2d Cir.), cert. den., 396 U.S. 847 (1969) found that such transfers involve rights of an important nature. Not only does the transfer "effectively eliminate the possibility of [plaintiff's] parole, but it significantly increases the restraints on him, exposes him to extraordinary hardships, and causes him to suffer indignities, frustrations and dangers, both physical and psychological, which he is not required to endure in a typical prison setting." Id. at 1078. In addition, there is the "terrifying possibility" that a transferred prisoner may not be mentally ill or retarded at all or that he may remain in the mental facility for a period longer than his original sentence. Id. at 1078-9.

Finding that there was substantial disparity between the procedural protections afforded to those who were facing involuntary civil commitment to a mental institution from the outside and the mere administrative decision to have a prisoner transferred to a mental institution, the court held that the prisoner was deprived of equal protection of the law.

The court relied heavily on Baxtrom v. Herold, 383 U.S. 107 (1966) which held that, "Where the state has provided for a judicial proceeding to determine the dangerous propensities of all others civilly committed to [a mental facility] it may not deny this right to a person [who has been criminally convicted] solely on the ground that he was nearing the expiration of a prison term." Id. at 114. The court in Schuster cited other authority, including a New York State Court decision which extended Baxtrom to a youth transferred from a correctional school to an institution for defective delinquents. Schuster, 410 F.2d at 1082, citing People ex rel. Goldfinger v. Johnton, 43 Misc. 2d 949, 280 N.Y.S.2d 304 (Sup. Ct. 1967). The court held that a full hearing with all the safeguards afforded to civilians was required for incarcerated persons.

In Matthews v. Hardy, 137 U.S. App. D.C. 39 (1969) the court found that a transfer to a mental hospital from a prison must be accomplished by the same procedure as a civil commitement for four reasons: (1) there is a stigma attached to the mentally ill which is different from that attached to the criminal class in general; (2) there are more restrictions on one's freedom and routines in a mental hospital than in a prison; (3) the length of time spent in the mental hospital could be longer than the original sentence; and (4) a person mistakenly placed in a mental hospital might suffer irreparable "severe emotional and psychic harm" Id. at 42, 43.

Two state supreme courts have recently held that a juvenile faced with commitment to a mental institution is entitled to the protection of due process safeguards. In In re Michael E., 123 Cal. 103, 538 P.2d 231 (1975), the California Supreme Court held, on both constitutional and statutory grounds, that the commitment of a ward of the juvenile court to a mental institution can only occur in accordance with the civil commitment statute of California. The North Carolina Court of Appeals has similarly held that juveniles are entitled to the same due process protections as adults in any proceeding where a loss of liberty is a possible result. In re Myers, 25 N.C.App.35, 214 SE2d 268 (1975).

The standard recommends that the states require a hearing before a family court judge prior to transferring a juvenile to a

mental health or retardation facility. In Parham v. J.R., 442 U.S. 584 (1979) the Supreme Court ruled that some kind of inquiry should be made by a neutral fact finder to determine whether the statutory requirements for admission of a ward of an agency to the hospital are satisfied. . . [and] that the child's continuing need for commitment be reviewed periodically by a similarly independent procedure. Id. at 597. The Court felt that in balancing the interests of children, parents, and the state, an evaluation by a staff physician to determine the child's need for hospitalization provided sufficient due process safeguards when an agency sought to commit one of its wards to a mental facility. However, the Court stated that states were free to require a formal procedure if it saw fit to do so.

Relying on the lower court decisions cited Infra, the National Advisory Committee believes that the risk of erroneous commitments of state wards is too great to allow a commitment without a prior adversial hearing before the family court judge. Parham, 442 U.S. at 608, (Justice Brennan concurring and dissenting). As the Supreme Court acknowledged, there is a risk that children without natural parents will be lost in the shuffle or that commitments may be extended because of state agency difficulties in locating alternative placements. Id. at 600. These standards contemplate the use of the least restrictive alternative necessary to provide appropriate treatment. See Standard 4.410 and Commentary. Without an independent evaluation of the restrictiveness in relation to the necessary treatment, agencies will often use facilities which provide more control than is necessary since they are usually more readily available. Further, adverse social affects can result from mental health commitments. The use of hearings before the family court judge combined with reviews of the process, See Standard 3.189, will avoid these problems.

The standard also requires a hearing before a transfer of a juvenile from a juvenile facility to one which cares for drug abusers and narcotic addicts. As in mental institutionalization, more restraints, more danger, more rigid programming, indignities, and so forth, may occur in a drug treatment center as opposed to a juvenile facility. See Schuster, 410 F.2d at 1078. The psyche of a youth could be severely damaged if incorrectly placed in a drug center with persons of all ages who are addicted, undergoing withdrawal, or knowledgeable about hard drugs.

The procedures at the hearing should comply with Standard 3.171. Adequate notice must be given in advance to afford the juvenile opportunity to prepare a defense. See also Bunday v. Cannon, 328 F. supp. 165 (D. Md. 1971), Modified, 453 F. Supp. 856 (D. Md. 1978) (adult prisoner denied due process). The presence of the person is required, unless the right has been knowingly and intelligently waived. See also Lynch v. Baxley, 386 F. Supp. 378 (M.D. N.D. 1974). Counsel is required to enable the person to effectively utilize any of the due process protections. Id. at 389. A juvenile should also be able to confront and cross-examine witnesses and offer evidence on his/her own behalf. Rennie v. Klein, 462 F. Supp. 1131,1147, (D. N.J. 1978). “Because the stigmatization and loss of liberty attendant upon forced confinement are of the most profound consequence to the individual affected

," due process requires that a judge be persuaded by

4.8 Grievance Procedures and Ombudsman Programs 4.81 Grievance Procedures

Written grievance procedures should be established for all residential and nonresidential programs. Each juvenile should be provided with an explanation and a copy of these procedures at the time the juvenile is admitted to the facility. Although the form of grievance procedures may vary, all such procedures should provide for:

a. Review of grievances by an agency official above the level of the facility director, and by an independent review board, or an impartial individual not employed by the agency;

b. Time limits for resolution of the grievance; and c. Involvement of staff and juveniles

Sources:

D. McGuillis, J. Mullen, and L. Studon, Controlled Confrontation: The Ward Grievance Procedure of the California Youth Authority (1976); Institute of Judicial Administration/American Bar Association Joint commission on Juvenile Justice Standards, Proposed Standards Relating to Correctional Administration, Standard 9.2 (draft, 1976) [hereinafter cited as IJA/ABA, Corrections Administration]; National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 20.2 (1976).

Commentary

This standard recommends the establishment of written grievance procedures for juvenile residential facilities and nonresidential programs. A grievance mechanism has been defined by the IJA/ABA, Corrections Administration, supra at Standard 9.2 as an:

administrative procedure at which complaints of individuals about residential programs or department policies, personnel, conditions or procedures can be expressed and resolved. IJA/ABA, Corrections Administration, supra at Standard 9.2.

Both the IJA/ABA, Corrections Administration, supra at Standard 9.2, and the National Advisory Committee on

Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 20.2 (1976) [hereinafter cited as Report of the Task Force] provide for the establishment and implementation of grievance procedures. The Report of the Task Force, supra at Introduction to Chapter 20.2 states that such grievance procedures:

provide a mechanism which enables juveniles to influence their lives and environment in an appropriate way... (They) provide the juveniles with new skills for cooperation and negotiation with others while recognizing and enhancing the juveniles dignity and self-esteem [and] . . . facilitate the kind of personal development that for many juveniles is a necessary prelude to the successful handling of problems in a nondelinquent manner.

Further, the Report of the Task Force, supra, states that formalized procedures provide a way to reduce the conflict and tensions inherent in any correctional setting or program. Report of the Task Force, Introduction to Chap. 20.

This standard contemplates the same purposes for a grievance procedure as do the Report of the Task Force, supra, and IJA/ABA, Corrections Administration, supra. By requiring that all juveniles be provided with explanations of such grievance procedures upon entering juvenile facilities, the standard attempts to insure that the procedure is used and not simply a "paper program." See generally Ward Grievance Procedure, CYA, 5 (1976). See also Standard 4.47 and Commentary.

Neither this standard nor the IJA/ABA or Task Force Standards provides for a specific form of grievance procedure. The IJA/ABA, Corrections Administration, supra at Standard 9.2 states that "while the establishment of some grievance mechanism seems highly desirable, no single model or procedure exists which could be implemented in all residential programs for juveniles in the country." Thus, although a specific type of program is not mandated, this standard recommends that a procedure be established that includes review of grievances, time limits, and the involvement of staff and juveniles. If the grievance procedure is to operate properly to protect juveniles and to enhance the administration of juvenile justice, all three components are necessary. Grievan

ces will be actually settled, staff and juveniles will work together to seek solutions, and when disagreement occurs, an unbiased decision maker can resolve it.

Section (b) of this standard states that time limits should be set for the resolution of grievances. The Report of the Task Force, supra, and IJA/ABA, Corrections Administration, supra do not set specific time limits. The IJA/ABA, Corrections Administration, supra states that time limits are a critical factor, and the Report of the Task Force, supra states that a prompt, full hearing should be conducted and that grievances should be resolved at the earliest possible time. See IJA/ABA, Corrections Administration, supra at Standard 9.2 and Commentary; Report of the Task Force, supra, Intro. to Chap. 20, and Standard 20.2 and Commentary; see also Ward Grievance Procedures of the California Youth Authority (1976). Since each state's system will be different, no specific limit is provided by the standard. However, the California procedure which requires resolution of grievances within thirty days is a reasonable one.

It should be noted that Standards 4.71 (Transfers) and Standard 4.52 (Room Confinement) provide for specific hearing procedures and that corporal punishment and the denial of specified rights are specifically prohibited by these standards. See Standards 4.51 and 4.411. Thus, although the Task Force provides that the grievance procedure be a method whereby a juvenile can ask for a review of imposed discipline, these standards provide for specific procedures to be utilized before the imposition of discipline. See Standards 4.54 and 4.71. Finally, it should be noted that Standard 4.43

4.82 Ombudsman Programs

In addition to the grievance procedures described in Standard 4.81, juveniles placed in residential or nonresidential programs should have access to an ombudsman.

The ombudsman should investigate matters adversely affecting juveniles under agency supervision which are not raised in grievance procedures, and whenever possible should serve on the assessment team for juveniles placed in training schools. Ombudsmen should report to the director of ombudsmen or, if such a position has not been created, to an agency official above the level of facility director who should not be administratively responsible for the program in which the ombudsman is assigned to serve.

(1974). Under the New York Program, four ombudsmen who were attorneys specializing in family court matters traveled to the state schools and received complaints from the residents on matters involving their legal rights. This standard, unlike the New York program, does not mandate that the ombudsmen be attorneys. However, it requires that the ombudsman have substantial experience in the area of juvenile law, youth services, and investigation. while attorneys could fill this role, other professionals familiar within the system are also eligible. This will increase the pool of persons eligible to serve as ombudsmen.

Under the New York program, when the ombudsman believes a complaint is within his/her jurisdiction, he/she has

In order to encourage residents, staff, and administrators to communicate freely with the ombudsman, statements made to the ombudsman should be statutorily protected as privileged communication. The privilege may be waived by the person providing the information.

Ombudsman reports should not form the basis for agency disciplinary action. However, based upon information brought to light by the ombudsman, the agency should initiate its own independent investigations which may give rise to agency action.

Sources:

Institute of Judicial Administration/ American Bar Association Joint Commission on Juvenile Justice Standards, Proposed Standards Relating to Correctional Administration, Standard 9.2 (draft, 1976); M. Goddard, The Ombudsman in the New York State Division for Youth Facilities (1974); H. Hoffman, "The Limits of Litigating Alternatives to a Lawsuit," Prisoner Rights Sourcebook (1973); M.D. Kannersehn, A Report on the New York Division for Youth: Ombudsman Project, The Council of State Governments (1974); M.Goddard, The Ombudsman Handbook (1972).

Commentary

This standard recommends that juveniles in residential and nonresidential programs have access to an ombudsman. This standard is based upon the experience of the New York State Division for Youth Facilities which created an Office of Ombudsmen within its legal division in 1972. Goddard, The Ombudsman in the N. Y. State Division for Youth Facilities

examine records. The ombudsman will prepare a factual report on legitimate complaints which is forwarded to the superintendent of the school, the director of the Division of Youth, the director of the Ombudsman Project, and an independent review board. The review board assists in resolving problems and serves as an external check on the project's effectiveness. See generally Goddard, supra. See also Hoffman, Prisoner's Rights Sourcebook (1973).

This standard provides that the ombudsman investigate matters that are not raised in grievance procedures. Ombudsmen can initiate investigations where a juvenile has not made, or does not want to make, a formal complaint, or where the matter to be investigated is not appropriate for a grievance procedure. The latter may involve matters of misfeasance or malfeasance by the facility administrators, matters pertaining to the quality of treatment or compliance with state laws requiring specific standards for educational programs. The role of the ombudsman is more encompassing than the grievance procedure and provides a method for the immediate identification of developing problems and the transmission of information pertaining to them to the director of ombudsmen or to an appropriate agency official.

The combination of the grievance and disciplinary procedures and the ombudsman program will ensure maximum protection of a juvenile's rights while in residential settings. The existence of an ombudsman can also facilitate the flow of information to outside groups, provide a perspective different from that the staff regarding the program and individual needs of children, stimulate change and improvement in the treatment of children, and provide an ongoing evaluative mechanism to monitor the types of treatment children are receiving in facilities. See generally M. Kannersehn, "Ombudsman Project: the Council of State Governments," A Report on the N. Y. Division for Youth" (1974). The ombuds